*Practice limited to federal immigration law. Licensed in NY, MA, but not in CA.

Divorced And Waiting for a Visa — How to Move from F-3 to F-1

 

Today, I’m going to discuss a particular immigration case that involves a divorce and how that would impact somebody who is waiting for a visa to become current in the F-3 versus the F-1 preference category. Let me explain the situation and see if this interests you and connects with what’s going on in your particular case.

 

From married to divorced

The woman who came to me is an Indian national who was referred to me by one of my all-time favorite clients. This was her question: “My mother petitioned for me on June 22nd, 2015, under the married son/daughter over 21 of USC (F3 category). This needs to be converted to an unmarried son/daughter over the age of 21 of USC (F1 category) since I have been divorced. Would converting to F1 make the process faster?”

She goes on to say, “As per the June 2020 visa bulletin, (F1 cases for India) February 2015 cases are being processed and my priority date is June 22nd, 2015. Hence, we thought it would be beneficial to request USCIS to change my file’s category.”

 

How I help people

In case you don’t know me, my name is Josh Goldstein. I’m an immigration lawyer in Los Angeles. And I help people across the country and around the world get immigration benefits, work permits, green cards, and US citizenships.

I’m particularly committed to helping people who have delayed immigration cases. And I do that by filing mandamus lawsuits against USCIS and consulates around the world.

 

The visa bulletin

Now let’s unpack this case. First, let’s go to the visa bulletin. If you don’t know about the visa bulletin, you can find it online if you just Google visa bulletin. It comes out every month. The State Department publishes it. And the visa bulletin gives you your place in a long line.

If you’re waiting for a visa to become current, where are you in this line? That’s the question the visa bulletin answers. And you’ll notice that for family-sponsored preferences, you have the F1, F2A, F2B, F3, and F4 categories. And they’re described here in this section.

These are all the preference petition categories. And each month, it tells you which one is current. Also, there are separate categories for China, India, Mexico, the Philippines, and every other area except for those. And the person asking this question is an Indian national.

 

A better priority date?

She started out as a married son or daughter of a US citizen. She started out in F3. Now, as to the F3 category for July 2020, they’re working on cases that were filed in May of 2008. Since she’s gotten a divorce, she would move into the F1 category. The current priority date for July 2020 is July 8th of 2014.

So the answer to her first question, whether converting to F1 would make it faster, is yes. It would make it faster. The date for F3 is May 2008. And that for F1 is July 2014. That’s a good six years faster. That would be good. However, there are a couple of things I want to say about the divorce.

 

The divorce must be legitimate

First of all, the divorce must be a bonafide, legitimate divorce. Sometimes, people, who are married and they’re in the F3 category, will get a divorce solely for immigration purposes, just so that they can obtain a faster green card. And if you do that, you’re going to destroy all your immigration chances because that’s fraud.

A divorce should happen for bonafide reasons: there was a breakdown in the relationship and things of that nature. You don’t want to run out and get a divorce just to get a green card a little bit faster because that’s fraud and that’ll come back to bite you.

 

How to move your file from F3 to F1

Secondly, how do you actually move your file from F3 to F1? Well, I think what you should do is send a letter to USCIS or to the National Visa Center, depending on where your case is. Send them a copy of the divorce decree, send a letter to them along with the approval notice or the receipt notice for the case.

It’s very difficult to communicate with the USCIS or the National Visa Center by sending a letter. But I think this is the procedure that you’re supposed to follow in order to try to get them to change your classification from one category to another.

 

You must have been in status the entire time

There are a couple of other things I want to point out. There was an employment-based component to her case. But if you want to get a green card through a preference petition through the adjustment of status process in the United States without returning to your home country and going to a consulate, you have to have been in status the entire time.

You have to be in status at the time you’re applying for adjustment of status. So as we can see, this person’s case is not going to be current for some time, maybe for another year, because her priority date is June 2015 and they are working on July 2014 now. So she could have about a year to go.

 

More complications

The visa bulletin does not progress in a linear way. Every month, it could go forward, or it could go backward, and it could even jump ahead. We don’t really know how long it’ll take but it could take about a year.

So in order for her to get a green card through adjustment of status, she would also have to be in status at the time she applies. And if it’s a year or so away, she has to find a way to remain in status. That could prove tricky.

If she were to leave the US and cancel her process, then we have another problem. Trump is messing around with visas. The consulates claim to be closed for the coronavirus and they’ve been closed for some time. Also, his presidential proclamation is preventing the issuance of visas.

 

What might happen in 2021

Who knows where we will be a year from now? Trump might not be president. Then again, Trump could win the election and be inaugurated for a second term. And he could come out with all sorts of new regulations that would mess with the visa issuance process. There could be some bumps ahead.

Those are my thoughts on this particular scenario. If your mother or father petitioned for you when you were married and then you got a divorce and you want to change from F3 to F1, this gives you a good overview of what the issues are and how you would do that.

If you have questions, let me know. Get in touch with me. I can answer your questions, help you out, or point you in the right direction. Thank you so much for your time. Keep fighting for your immigration goals.

Josh Goldstein
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